Adjustment of Status vs. Consular Processing for my Canadian wife

[Kevin Elaine 0]

Hi,

 

I'm a permanent resident of the US. My wife is Canadian (She’s born in Taiwan). We got married in the US last year, and our baby was born in the US last year, too. My wife entered the US with her Canadian passport every time, based on agreement between the US and Canada, she can stay up to 6 months per visit.

 

Currently, my wife would like to apply for the green card. Based on our investigation, there are two options: Adjustment of Status and Consular Processing. Currently, we prefer Adjustment of Status since my wife can work in the US after getting the EAD card and the Advance Parole document can allow her to travel back to Canada. Consular processing does not support EAD card or travel document.

 

If we choose Adjustment of Status, is it OK for my wife to stay in the US when the application is in pending status? (Our concern is that she entered the US with her Canadian passport, there is no valid visa)

 

If we choose Consular Processing, can my wife enter the US when the application is still in pending status?

 

We know it might take more than 1 year to get the marriage based green card approved nowadays, which one option will take shorter time?

 

Thanks,

Kevin

[Lemonslice 4,553]

Where is your wife now?

There is usually no Adjustment of Status possible if you (the petitioner) are a permanent resident. How, and when, did you become a permanent resident?

Consular processing/spousal visa will allow your wife become a permanent resident herself as soon as she enters with her visa; she can then work and travel.

[Sarah&Facundo 576]

The wait time for an EAD card/travel permit could be 8-12 months (sometimes more) after filing AOS. Therefore your wife could not leave the US or work during that period. If you did consular processing, she could work and travel immediately once entering the US with her visa. 

Edited March 21, 2023 by Sarah&Facundo

[Allaboutwaiting 2,500]

Adjustment of status SUCKS!!!!!

 

Thanks for coming to my TED talk. 

[OldUser 4,797]

This is a delicate situation.

 

How long has your wife been present in the US on this trip? To adjust on basis of marriage to LPR, one should be in valid immigration status, all the way up to AOS approval. Only US citizen's spouse overstay and unauthorized work is forgiven. If your wife overstayed by more than 6 months but less than a year, she will have a 3 year bar on entering to the US, if she leaves now. If she overstayed by more than a year, she will have a 10 year bar on entry!

 

Are you thinking of naturalizing? How soon can you naturalize? This may be a solution. E.g. naturalize first and then petition for her. Do not submit anything before that.

 

If she's lawfully here now and didn't overstay, she needs to leave the US before her status ends. And you will file I-130 for consular processing in this case.

 

Regarding the question about pending I-130 and her visiting. Yes, it's possible, but not guaranteed. She cannot lie to CBP if they ask whether she has family in the US or say she's travelling as a tourist with a toddler etc.

 

There's a thread discussing just that:

 

 

Good luck!

 

 

Edited March 21, 2023 by OldUser

[Kevin Elaine 0]

 

@Lemonslice

@OldUser

Thanks for sharing the information.

My wife is in the US now. Actually, we traveled between Seattle, WA and Vancouver, BC pretty often. She stayed in the US up to 1 month per visit.

I got my employment based green card in Aug/2019.

 

 

[JeanneAdil 6,191]

can not stay and adjust as spouse of LPR

apply and she returns to Canada

get the police report now from Taiwan

 

as LPR the child is a derivative of the I 130

if you naturalize,  the child needs a separate petition so stay LPR till she is here under the spouse visa

[Crazy Cat 39,218]

6 hours ago, Kevin Elaine said:

 

@Lemonslice

@OldUser

Thanks for sharing the information.

My wife is in the US now. Actually, we traveled between Seattle, WA and Vancouver, BC pretty often. She stayed in the US up to 1 month per visit.

I got my employment based green card in Aug/2019.

 

 

 

Adjustment of Status       
    More expensive than CR-1    
    Spouse can not leave the US until she/he receives approved Advance Parole (approx 6-8 months)    
    Spouse can not work until she/he receives EAD (approx 6-8 months)    
    Some people have had problems with driver licenses, Social Security cards, leases, bank account during this period    
    Spouse will not receive Green Card for many months after Adjustment of Status is filed.
     
       

CR-1
    Less expensive than AOS
    No Adjustment of Status(I-485, I-131, I-765) required.    
    Spouse can immediately travel outside the US    
    Spouse is authorized to work immediately upon arrival.    
    Spouse receives Social Security Card and Green Card within 2 or 3 weeks after entering the US    
    Opening a bank account, getting a driver's license, etc. are very easily accomplished with GC, SS card, and passport.
    Spouse has legal permanent Resident status IMMEDIATELY upon entry to US.
   

 

Edited March 21, 2023 by Crazy Cat

[SteveInBostonI130 3,319]

4 hours ago, JeanneAdil said:

as LPR the child is a derivative of the I 130

if you naturalize,  the child needs a separate petition so stay LPR till she is here under the spouse visa

 

Child is USC.

Edited March 21, 2023 by SteveInBostonI130

[Sm1smom 242]

Op - If your wife is already in the USA and her authorized stay has not expired, she is eligible to file for AOS. The F2A Family sponsored visa category is current, so yes you/she can concurrently file both I-130 and I-485 now. I don’t get why some in this forum continue to make the blanket statement of only the spouse of a USC is eligible to file for AOS. That is absolutely not true. As long as the spouse of a LPR was legally admitted into the US, their authorized stay has not expired, and the visa category is current, (and of course the decision to file for AOS was made after their admission to the US), the spouse of a LPR is AOS eligible. The USCIS Manual debunks this myth of the spouse of a LPR not being eligible to file for AOS as it lists the relatives of a LPR as one of the categories eligible to file for AOS:

 

Noncitizens eligible for adjustment of status generally may apply based on one of the following immigrant categories or basis for adjustment:

• Other relative of a U.S. citizen or relative of a lawful permanent resident under a family-based preference category; ^[3] 

[^ 3] This category includes the following family-based preference immigrant classifications: unmarried sons and daughters, 21 years of age and older, of U.S. citizens; spouses and unmarried children, under 21 years of age, of lawful permanent residents; unmarried sons and daughters, 21 years of age and older, of lawful permanent residents; married sons and daughters of U.S. citizens; and brothers and sisters of U.S. citizens (if the U.S. citizen is 21 years of age or older). See INA 203(a). 

 

Yes, maintaining a valid status while the AOS application is pending is recommended, it is NOT a required condition for AOS approval. This is recommended as it ensures one has a valid fall back status if the AOS application is denied for some other (not related to falling out of status following AOS filing). This shouldn’t be a source of concern IMO, if there’s no glaring reason for the AOS to be denied.

 

You however need to be aware your wife will not be able to work or depart from the US until after her I-765 (for EAD) and I-131 (for AP) have been approved, these can take several months after filing to get approved. If she departs from the US without an approved AP while her AOS application is pending, the application will be deemed abandoned and subsequently denied. 

[SalishSea 16,770]

16 hours ago, Kevin Elaine said:

Hi,

 

I'm a permanent resident of the US. My wife is Canadian (She’s born in Taiwan). We got married in the US last year, and our baby was born in the US last year, too. My wife entered the US with her Canadian passport every time, based on agreement between the US and Canada, she can stay up to 6 months per visit.

 

Currently, my wife would like to apply for the green card. Based on our investigation, there are two options: Adjustment of Status and Consular Processing. Currently, we prefer Adjustment of Status since my wife can work in the US after getting the EAD card and the Advance Parole document can allow her to travel back to Canada. Consular processing does not support EAD card or travel document.

 

If we choose Adjustment of Status, is it OK for my wife to stay in the US when the application is in pending status? (Our concern is that she entered the US with her Canadian passport, there is no valid visa)

 

If we choose Consular Processing, can my wife enter the US when the application is still in pending status?

 

We know it might take more than 1 year to get the marriage based green card approved nowadays, which one option will take shorter time?

 

Thanks,

Kevin

Hopefully your wife is okay with not being able to travel or work for up to a year, as the AP/EAD is taking that long.   Green cards out of Seattle are taking over two years.

[Chancy 6,233]

On 3/20/2023 at 9:52 PM, Kevin Elaine said:

I'm a permanent resident of the US. My wife is Canadian (She’s born in Taiwan).

 

Your wife's window for filing I-485 is closing by end of March.  F2A visa category retrogressed in the upcoming April visa bulletin.  That means spouse of LPR will no longer be allowed to file I-130 and I-485 concurrently.

 

On 3/21/2023 at 9:30 AM, Sm1smom said:

The F2A Family sponsored visa category is current

 

Unfortunately, F2A is no longer current on the April visa bulletin.  OP has a week left until I-130/I-485 concurrent filing is no longer an option.

 

[Sm1smom 242]

45 minutes ago, Chancy said:

 

Your wife's window for filing I-485 is closing by end of March.  F2A visa category retrogressed in the upcoming April visa bulletin.  That means spouse of LPR will no longer be allowed to file I-130 and I-485 concurrently.

 

 

Unfortunately, F2A is no longer current on the April visa bulletin.  OP has a week left until I-130/I-485 concurrent filing is no longer an option.

 

Agree, with the release of the April VB, F2A will no longer be current from April. F2A category was current as at the time my response was posted. 

[Chancy 6,233]

36 minutes ago, Sm1smom said:

Agree, with the release of the April VB, F2A will no longer be current from April. F2A category was current as at the time my response was posted. 

 

Correction to my comment above -- USCIS announced that for AOS filing, applicants may use Table B of the visa bulletin.  So F2A is still current for I-130/I-485 concurrent filing, at least until end of April.  Refer to https://www.uscis.gov/green-card/green-card-processes-and-procedures/visa-availability-priority-dates/adjustment-of-status-filing-charts-from-the-visa-bulletin